Finally! A lawsuit [PDF] has finally been filed today in federal District Court in Pennsylvania, against the Democratic Secretary of the Commonwealth, Pedro A. Cortes and the Commissioner of the state's Election Commission, Chet Harhut, over Cortes' recent directive that paper ballots only need be given out to voters in the event that every voting machine in a precinct breaks down.

That stunning decree was in opposition to PA's state law which allows election officials the discretion to give emergency paper ballots to voters if even a single machine breaks down in a precinct.

That neither Obama nor the DNC have said a word about this in the month or so since Cortes issued his directive has been maddening, and should be an outrage to voters of all parties in the Keystone State, sure to be another battleground state this November. The lawsuit was finally filed today by the state's NAACP in concert with the 866-MYVOTE1 Election Reform Network.

While the complaint should call for paper ballots to be made available to any voter who wishes one, or, at a minimum, to be given out if just one machine breaks down in a precinct, or even if the wait time in line is longer than 30 minutes, unfortunately, the suit calls very conservatively for emergency paper ballots to be given out if 50% or more of the voting machines in a precinct break down. But at least it's something, we guess, particularly in lieu of Obama and/or the DNC taking any action at all here, given they have the most to lose by the ridiculous action from state Democrats.

Pennsylvania uses unverifiable Direct Recording Electronic (DRE, usually touch-screen) machines across most of the state, and saw machine failure after failure, as we documented in detail during their April primary this year. The failures resulted in untold numbers of disenfranchised voters, as noted in news reports, and logged by calls to the 866-MYVOTE1 hotline...

"Voters should not be forced to wait hours in line in order to exercise their fundamental right to vote," said John Bonifaz, legal director for VoterAction.org and co-counsel for the plaintiffs in a statement issued today. "While the use of electronic voting machines continues to pose a separate threat to the integrity of the vote-counting process, federal court intervention is necessary to ensure that voters will not be disenfranchised by long lines on Election Day in Pennsylvania, when these machines become inoperable."

In a declaration filed with the suit, J. Whyatt Mondesire, the president of the NAACP State Conference of Pennsylvania, notes: "One of the major impediments to members exercising their right to vote is the long lines frequently encountered on election day...Thousands of members have faced serious delays in voting when machines have broken down in the past and this problem will be much more severe this year when unprecedented numbers of voters will be coming to the polls."

[DISCLOSURE: John Gideon of VotersUnite.org, a frequent contributor to The BRAD BLOG has also filed a declaration to the court in the case.]

The 23-page complaint filed today in federal court, in PA's Eastern District is available for download here [PDF]...

She compared the the state statute, versus the directive from Cortes in an email, which noted, in part:

Statute in the election code ( 3031..20) Section 1120-A which says:

(b) "If any electronic voting system or any component thereof being used in any election shall become inoperable during such election, it shall, if possible, be repaired or another machine substituted by the custodian or county board of elections as promptly as possible, for which purpose the county board of elections may purchase as many extra systems or system components as it may deem necessary, but in case such repair or substation cannot be made, paper ballots , either printed or written and of suitable form, may be used for registering votes."

VERSUS recently issued Directive (directive are guides NOT law)

"if all electronic voting machines in a precinct are inoperable, "paper ballots, either printed or written and of any suitable form," for registering votes (described herein as "emergency back-up paper ballots") shall be distributed immediately to eligible voters pursuant to section 1120-A(b) of the Election Code. "

The "Nature of the Case" opening of the complaint filed today, details the "perfect storm" expected by plaintiffs --- and we heartily agree with them about what is likely to occur this November 4th --- leading to their demand for emergency paper ballots if %50 or more of machines fail. And again, why the Democratic Secretary of the Commonwealth hasn't demanded that there be enough paper ballots for every voter --- and why neither Obama nor the DNC have said or done a thing about it --- remains well above our paygrade, apparently...

NATURE OF THE CASE

1. This civil rights action is brought to enforce the most fundamental right secured by the United States Constitution: the right to vote.

2. In Pennsylvania this year, an unprecedented interest in voting, a record number of newly registered voters, and a well-established history of widespread electronic voting machine failures have converged to create a perfect storm that, left unaddressed, unquestionably will result in the disenfranchisement of substantial numbers of citizens. Fortunately, the remedy for this grave threat to the franchise is simple and places only the slightest of burdens on the State: the provision of emergency paper ballots when half or more of the voting machines in any precinct simultaneously fail.

3. In the face of the extraordinary stresses that our election apparatus will face this year, the new rule promulgated by the Pennsylvania Secretary of the Commonwealth directing the use of emergency paper ballots only when all of the voting machines in a precinct fail is nothing short of perverse. It rests on the specious proposition that remedial action is only required in the most dire of circumstances when no machines work at all and that no remedy whatsoever is appropriate where, as here, the record demonstrates an overwhelming likelihood that substantial numbers of precincts will have half or more but not all of their electronic voting machines fail.

4. Although state officials generally have wide discretion to administer elections in the manner they see fit, this is the rare case in which the Secretary is playing with fire to a constitutionally intolerable degree. Given the certainty that electronic voting machines will fail recognized by the states own certification expert and given the dramatic impact that every failure has on the affected precinct because the vast majority of precincts have no more than two or, at most, three machines this Court should direct the Secretary of the Commonwealth to ensure that local election officials provide voters with paper ballots if 50% or more of the voting machines in a precinct become inoperable. This modest intervention will allow all of those who wish to vote the opportunity to do so in a timely manner and without undue delay, while imposing only a negligible burden on the State and local election officials. In this historic year, and given the gravity of the threat to the franchise, surely the Constitution requires this minimal safeguard.

The BRAD BLOG covers your electoral system, fiercely and independently, like no other media outlet in the nation. Please support our work with a donation to help us keep going. If you like, we'll send you some great election integrity documentary films in return. Details on that right here...

While some of these things are coming late to the game, I am somewhat heartened by the fact that they ARE coming. I think the level of voter education over the last couple years is due largely to the work of Brad, the Brad's Blog team and others out there who simply will not take this stuff lying down any more.

Voter suppression, bogus lawsuits against ACORN (and other voter registration groups), bad voting machines, provisional balloting, prohibitive voter registration guidelines that are open to interpretation...while it's frustrating as hell to still see this stuff going on, it's GREAT to see that voices are raising to call these things out and take action against them.

I got an interesting email from TheNation today. They've finally pulled their heads out of the sand about the dangers of electronic voting machines, about which they were in serious denial before.

The articles give great and timely overviews of actual threats against US democracy (and, in turn, democracies around the world). Hope it is OK to paste the email here:

Not so long ago, when Karl Rove was still dreaming of a permanent Republican majority, 2008 was shaping up to be possibly the dirtiest election season yet. BREAL As Andrew Gumbel writes in this week's issue of The Nation, the plan was to use every legislative and executive lever available to the GOP to suppress the votes of minorities, students, the poor, the transient and the elderly. Gumbel warns that many pieces of that plan are still in place and could pose a threat on November 4.

Keep watching TheNation.com for timely coverage of the final days of the longest and, perhaps, most critical presidential campaign in modern US history.

Obama the Philosopher Linda Hirshman | All of a sudden, he's making a pretty good case for why Americans should once again care for one another.

I too, don't get-it; Seems that both, the Obama staff and the Democractic Party National campaign officials would be all over this as well as, taking advantage of the door that the Rethugs opened when they thru fits about Acorn. I've tried to call attention to this is various blogs (with little or no success) , especially in regards to the ultimate threat: Diebold / Superior etc. ** & in referring people to Brads blog for details.
Almost seems as though they don't want to know the truth ?

This lawsuit is a start, and democratic turnout is paramount. It either matters, and we care enough to sue and demonstrate and march and demand justice, to preserve what remains of our precious, fragile democracy... or we will loose this legacy. Our "elected officials", the media, and We the People are letting our fragile, miraculous dream of a country, slip away. We were a nation of laws. Fully representative democracy honors the dignity of each vote, each individual, and holds all accountable to our laws. Once, we were the standard bearers, giving hope to the aspirations and dreams of a weary, abused humanity, the closest point to perfect a nation of the self-governed had yet achieved. America is, or was, much more than a place. America was a way of thinking, of being. I know you remember. America embodied the universal yearnings of safety, equality, opportunity, respect, and dignity, and these ideals, this dream drove us forward. We still had far, far to go. But many of us have given up. Unless we act, we are witnessing the death of our legacy. America, once the city on a hill, a beacon, is being extinguished right before our eyes. The choice is yours. Claim your Democracy. Vote justice, vote dignity and vote Obama.

"The lawsuit was finally filed today by the state's NAACP in concert with the 866-MYVOTE1 Election Reform Network."

Let's keep this momentum going, there are more of us than there are of them. I'll take an honest vote even if its not my choice of candidate. If there are Americans THAT stupid anyway, we need to learn how to extend to them and wake them up. However, we cannot do that, if we do not have an honest measure.

Wow! Someone taking action to "protect" the votes. I use the quotes because I've read the lawsuit, and like Brad points out it asks for much less than should be required.

I was amazed that it doesn't raise the issue that there is no way to know that votes cast on a DRE are counted accurately, and therefore, that it violates the right to vote as expressed by the U.S. Supreme Court which has ruled in favor of the fundamental right to have your vote counted stating, "We regard it as equally unquestionable that the right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box." U. S. v. Mosley, 238 U.S. 383, 386 (1915).

Do you know how your vote was counted on a computer? Do you just have faith that it was counted correctly, or at all? Are you a true believer in secret vote counting just like so many who walk the halls of power right now? Not me, and I also don't believe it when any attorney files any election protection lawsuit and misses that fundamental issue.

Here's another one on that fundamental point. “A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear. It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, and to have their votes counted. In Mosley the Court stated that it is ‘as equally unquestionable that the right to have one's vote counted is as open to protection … as the right to put a ballot in a box. The right to vote can neither be denied outright, nor destroyed by alteration of ballots, nor diluted by ballot-box stuffing. As the Court stated in Classic, ‘Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted….” Reynolds v. Sims, 377 U.S. 533, 555 (1964). (Citations omitted.)

Republicans are like dirty sludge seeping into the cracks that you missed filling. Kerry didn't fill the swiftboat crack soon enough. Obama and the Dems have been excellent at filling the cracks and stopping the leaks promptly, but they have for some reason left this one open. And as sure as gravity, if they do not pay attention to this, the GOP will continue to use this unguarded opening and all Americans along with democracy itself will be covered in crap.

As a resident of Pa. and being concerned about the use of Diebold machines in my district, I contacted the local election board about paper ballots. I was informed I could use an absintee ballot but the deadline had already expired. When I asked how I could be sure my vote could'nt be changed I got the same old song and dance. I am willing to bet if Rovian tactics rears it's head in this election there will be hell to pay.

Can someone please explain why the Democrats so spineless when it comes to facing the electronic voting machine problem? With the exceptions of Dennis Kucinich and Debra Bowen, of course (Could it be that the "d-e" in front of their names give them the backbone that other ruling Democrats lack? Would adding those letters in front of other Democrats' names give them the spines that they are lacking?).

Incredible. That shows a serious lack of good judgment on the Democrats' part. They have a lot of evidence to back them up. An impressive and powerful arsenal, theirs for the taking, which they fearfully ignore, spineless palace eunuchs that they are.

The Republicans always succeed in giving the Democrats a good thrashing because the democrats help them. It is like one UFC fighter --- the Democrat --- limiting his arsenal to timid jabs while the other UFC fighter is allowed to kick, punch, grapple, ground and pound, with much news media cheerleading.

If the Democrat has the audacity to give a real punch, he soon pulls back apologetically amidst righteous boos from the news media, just before being dealt with elbows and knees upside the head from the Republican fighter. Democrats truly are sniveling wimps. Real palace eunuchs.

Notable exceptions: Dennis Kucinich and Debra Bowen have repeatedly scrap against the bullies, slapped off some dust, and emerged victorious.